End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

South Carolina Rules of Professional Conduct

[1] Combining the roles of advocate
and witness can prejudice the opposing party and can involve a conflict of interest
between the lawyer and client.

[2] The opposing party has proper
objection where the combination of roles may prejudice that party's rights in
the litigation. A witness is required to testify on the basis of personal knowledge,
while an advocate is expected to explain and comment on evidence given by others.
It may not be clear whether a statement by an advocate-witness should be taken
as proof or as an analysis of the proof.

[3] Paragraph (a)(1) recognizes
that if the testimony will be uncontested, the ambiguities in the dual role
are purely theoretical. Paragraph (a)(2) recognizes that where the testimony
concerns the extent and value of legal services rendered in the action in which
the testimony is offered, permitting the lawyers to testify avoids the need
for a second trial with new counsel to resolve that issue. Moreover, in such
a situation the judge has firsthand knowledge of the matter in issue; hence,
there is less dependence on the adversary process to test the credibility of
the testimony.

[4] Apart from these two exceptions,
paragraph (a)(3) recognizes that a balancing is required between the interests
of the client and those of the opposing party. Whether the opposing party is
likely to suffer prejudice depends on the nature of the case, the importance
and probable tenor of the lawyer's testimony, and the probability that the lawyer's
testimony will conflict with that of other witnesses. Even if there is risk
of such prejudice, in determining whether the lawyer should be disqualified,
due regard must be given to the effect of disqualification on the lawyer's client.
It is relevant that one or both parties could reasonably
foresee that the lawyer would probably be a witness. The principle of imputed
disqualification stated in Rule 1.10 has
no application to this aspect of the problem.

[5] Whether the combination
of roles involves an improper conflict of interest with respect to the client
is determined by Rule 1.7 or Rule
1.9. For example, if there is likely to be substantial
conflict between the testimony of the client and that of the lawyer or a member
of the lawyer's firm, the representation is
improper. The problem can arise whether the lawyer is called as a witness on
behalf of the client or is called by the opposing party. Determining whether
or not such a conflict exists is primarily the responsibility of the lawyer
involved. See Comment to Rule 1.7. If a lawyer who
is a member of a firm may not act as both advocate and witness by reason of
conflict of interest, Rule 1.10 disqualifies
the firm also.